McClurg v. Birmingham Realty Co., [Ms. 1180635, Jan. 31, 2020] __ So. 3d __ (Ala. 2020). A plurality of the Court (Parker, C.J., and Wise, Mendheim, and Stewart, JJ., concur; Bryan, J., concurs in the result; Bolin, Shaw, and Sellers, JJ., dissent; Mitchell, J., recuses) reverses a summary judgment entered by the Shelby Circuit Court dismissing a premises liability action against Birmingham Realty Company (“BRC”). Plaintiff McClurg, an 82-year-old retail store patron, stepped in a pothole in the asphalt parking lot. The circuit court concluded that the pothole was an open and obvious danger. Ms. *2-3.
Openness and obviousness of a danger is resolved by an objective test of “‘whether the danger should have been observed [by the plaintiff] not whether in fact it was consciously appreciated [by him or her].’” Ms. *5, quoting Jones Food v. Shipman, 981 So. 2d 355, 362 (Ala. 2006). This question is generally not to be resolved on a motion for summary judgment. Ms. *6, citing Ex parte Kraatz, 775 So. 2d 801, 804 (Ala. 2000).
The opinion holds that holes in parking lot asphalt “are not so categorically obvious that the situation merits a per se defense.” Ms. *8. The Court declined to consider BRC’s argument raised for the first time on appeal that McClurg failed to prove that BRC had notice of the dangerous condition. Ms. *11.
Judge Bolin’s dissent would have affirmed the summary judgment because while retrieving a shopping basket, McClurg stepped backward into the pothole without looking. Ms. *19.